Monday, March 30, 2015

Setting politics aside to start with:
I'm unsurprisingly a strong supporter of the original Religious Freedom Restoration Act and its state-level counterparts that sought to protect religious believers against state interference of the sort that was legalized by Smith v Oregon.
I'm much more uneasy about RFRA defenses in civil lawsuits between two private parties. There is a lot to be said for having a general, impersonal private law, such that I don't have to know the identity of the other party in order to know the law that will govern our transaction. I've quoted this before in a related context; recall Voltaire's classic statement of the doux commerce thesis:

Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There thee Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word. At the breaking up of this pacific and free assembly, some withdraw to the synagogue, and others to take a glass. This man goes and is baptized in a great tub, in the name of the Father, Son, and Holy Ghost: that man has his son’s foreskin cut off, whilst a set of Hebrew words (quite unintelligible to him) are mumbled over his child. Others retire to their churches, and there wait for the inspiration of heaven with their hats on, and all are satisfied.

That's a major, valuable civil accomplishment, and not to be thrown away lightly. If I can't transact with people on the same terms because each of us is potentially carrying around a religiously-specific contract or tort law, that's a real loss. I don't say that a unified private law is required by justice or abstract principle; I'm too much of a pluralist and a multiculturalist for that. But I think we have reason to be very nervous about abandoning it, and reason to treat lightly and deliberately. I do not get the feeling that the trend toward super-RFRAs that extend to private transactions has been adopted with due care.
As to private-sector discrimination, I'm of the view that private businesses should be free to refuse customers, subject to two categories of exceptions: (a) if the firms are common carriers or (in the common law sense) public accommodations rather than ordinary private retailers and (b) in the United States, due to the constitutional and historical distinctiveness of Jim Crow and its melding of public and private discrimination, discrimination on the basis of race. I think the trend to treat bans on private-sector discrimination outside of public accommodations and common carriers as the rule, rather than a unique exception demanded by the unique shape of Jim Crow, has been a serious mistake.
But just because I think that the florist and the wedding-cake baker ought to be free to refuse customers in general doesn't mean that I think "antidiscrimination statute governing sexual orientation plus highly particular religious exemption" is a good second-best. Sometimes a legal kludge can make for a tolerable compromise. Sometimes when one area of law is broken, bending another can get you roughly where you should be. I'm not at all convinced that that's the case here. Writing an exemption to antidiscrimination law specifically for Christians who don't approve of homosexuality is ugly; and the generalized version we see in RFRAs like Indiana's does damage (the scale of which we can't yet guess) to the generality of the private law.
Now unbracketing the politics:
A pox on both your houses. There's a tremendous amount of deliberate and inflammatory misinformation flying around-- on one side, as if the IRFRA were nothing but a license to discriminate on the basis of sexual orientation, and on the other as if there were no relevant differences between IRFRA and other RFRAs. (Most state RFRas don't apply to horizontal suits between private parties; there's a circuit split on whether to interpret the federal RFRA as so applying, but the statute doesn't say that it does.)
George Stephanopolous yesterday went after Mike Pence with what he clearly thought was the very clever demand to get a yes or no answer to the question of whether it's now legal to discriminate against gays and lesbians in Indiana, when
a) It already was; Indiana doesn't have a statewide ban on private sector discrimination on the basis of sexual orientation (there are city- and county-level laws), and
b) the right answer is not to know the answer, as all RFRAs prescribe a standard for judicial review rather than predetermining answers. It's up to a competent court to adjudicate whether there is a compelling state interest in preventing discrimination against a particular gay person by a particular conservative religious believer in a particular transaction.
On the other hand, Pence and the bill's legislative supporters are obviously being disingenuous as hell about the motivation for passing a RFRA with this particular shape at this particular time. It is no secret that, politically, in Indiana, right now, this RFRA is centrally about same-sex marriage. People who have, in the last two years, unsuccessfully defended a ban on same-sex marriage in federal court and unsuccessfully tried to constitutionalize that ban make unconvincing defenders of liberty; they're just switching legal strategies.
By the same token, and as I've said before,the newfound desire for opponents of same-sex marriage to defend pluralism and compromise rings very hollow.

Both of those requirements — compelling government interest, least burdensome means — are open to a considerable degree of interpretation, which is of course by design: That is what allows a modus vivendi to emerge.[...] Gay-rights activism is, just at the moment, very much oriented toward preventing the emergence of any social compromise on the matter of homosexual marriage, which is why tradition-minded florists and bakers, generally conservative Christians, are being targeted for prosecution as enemies of civil rights.

The anti-same-sex-marriage movement during its ascendancy in the 1990s and 2000s was viciously and hatefully maximalist. Imagine the different history of America if conservatives in the late 1990s had energetically supported civil unions provided that they not use the word "marriage," instead of pursuing the most aggressive and restrictionist DOMAs they could get away with in each context, such that where conservative majorities were strongest even ordinary contractual rights that might seem too much like marriage were prohibited, instead of mobilizing boycotts of firms that offered same-sex couples employment benefits! As it is, their defense of private sector liberty and the pluralism it makes possible is many days late and many dollars short. It kicked in only when, starting in the mid-2000s, the political tide turned.
That shouldn't change our view of the right outcome; some particular cake baker shouldn't lose his religious liberty because the movement that's defending him now makes hypocritical arguments. But it does mean that the violin I hear playing when conservatives complain about the supposedly totalizing and compromise-rejecting agenda of same-sex-marriage supporters is very very small indeed.
Update:Michael Tanner offers some thoughts in a very similar spirit.